Yesterday, the National Press Photographers Association (NPPA), joined by twelve other news and photographers’ organizations and First Amendment advocacy groups, filed comments with the Fairfax County Park Authority strongly objecting to their proposed permit and fee structure.

The proposed scheme would require all professional photographers to obtain a “professional photography permit”. Further, the permit would take 5 days to process, making it nearly impossible for news photographers to obtain one in time for most news situations, for which there is little to no warning.

The comments, authored by NPPA general counsel, Mickey Osterreicher, explains that “the proposed rules, create an unnecessary and burdensome distinction between amateur and professional photographers. Whether the images being made and recorded are for journalism, weddings or any other type of photography/filming (hereinafter “photography”), distinguishing between professional photographers and amateurs who are doing precisely the same things, at the same times, and in the same places, is arbitrary, capricious and unconstitutional.”

NPPA has always argued that permits in parks should only be required if the photographer’s presence would create a disruption. As the comments explained, “We believe that the proper question to ask is whether the photography creates any unusual impact on the land. If the activity presents no more impact on the land than that of the general public, then it should be exempt from permit and fee requirements.”

In the submitted comments Osterreicher went on to explain that, “unfettered access is necessary in coverage of the important public policy issues that arise in the conservation and use of public park resources. Journalists should be free to report to the public on public issues from public lands at any time. That protection should extend not only to individuals traditionally identified as newsgatherers, but also for freelance visual journalists and members of the public who may use cameras on a speculative basis to photograph or film activities on public lands without having an assured media outlet for their work.”

The other groups joining in the letter were: the American Photographic Artists, the American Society of Media Photographers, the American Society of News Editors, the Associated Press Media Editors, the Association of Alternative Newsmedia, the Graphic Artists Guild, the North American Nature Photography Association, PACA Digital Media Licensing Association, the Radio Television Digital News Association, the Reporters Committee for Freedom of the Press, the Society of Environmental Journalists, the Society of Professional Journalists and the White House News Photographers Association.

Today the NPPA, along with the Reporters Committee for Freedom of the Press and supported by other news media organizations, filed a legal brief in support of a photojournalist’s claim of a right to access wild horse roundups on federal land. The Ninth Circuit Court of Appeals is set to again consider whether the Bureau of Land Management (BLM) violated wild horse advocate Laura Leigh’s First Amendment rights when it restricted her ability to photograph a 2010 horse roundup.

Leigh was trying to take pictures of BLM personnel corralling horses in the Nevada scrub when officials demanded she stay in designated public viewing areas. The views from these locations were obstructed, and Leigh’s wasn’t able to get the pictures she needed, according to court documents. Monitoring how the government handles these roundups is important, as they involve removing a vulnerable species from it’s natural habitat.

In the days following the incident, Leigh sought an injunction to prevent the land bureau from restricting public access in the future. Since then, the case has seen its share of legal wrangling. The injunction has been alternatively granted and overturned on several occasions. Now, the appellate court that sent the case back to the lower court last year is set to hear it again.

Though the case involves a relatively specific issue, it implicates a privilege of paramount importance: the right of the press and public to monitor the government. More specifically, this case is a matter of the extent of access the press and public should be allowed in pursuing that privilege. “Government activities need press access and review, particularly where they occur in remote and deserted locations that the public is unlikely to frequent,” said Jean-Paul Jassy of the law firm Bostwick & Jassy LLP who authored the brief along with Kevin L. Vick of the same firm, with input from Gregg P. Leslie, Legal Defense Director for the Reporters Committee for Freedom of the Press and Mickey H. Osterreicher, NPPA general counsel.

Like many First Amendment liberties, the right to access government activities is not absolute. Certainly, some government actions involve serious danger or demand confidentiality to the extent that some restrictions are reasonable. The courts have developed a test for balancing the government’s interest in keeping people away from certain situations against the people’s right to know (usually provided by press coverage) in seeing what their government is doing.

Articulated in Press-Enter. Co. v. Superior Court of California for Riverside Cnty., 478 U.S. 1, 8, the “experience and logic” test considers 1) whether the activity in question has historically been open to the press and general public and 2) whether public access plays a significant positive role in the function of that activity. The stronger these questions are answered in the affirmative, the heavier the burden on the government to demonstrate an “overriding interest” that warrants restriction. The government also must show that these restrictions are narrowly tailored to serve that interest.

In the case at hand, the lower court found that 1) wild horse roundups have traditionally been open to the public and 2) open access plays an important role in “protecting the interests of the overpopulated horses and news gathering for the benefit of the public.”

However, the court ruled in the government’s favor. The U.S District Court judge found that the access restrictions were warranted by concerns over safety and effective horse gathering. The NPPA and Reporters Committee for Freedom of the Press strongly disagree. Our objections were outlined in the brief to the Ninth Circuit:

“The court afforded too much discretion to the Government to decide whether observing the gathers was safe, without recognizing that journalists routinely – and critically – face far more dangerous situations on a regular basis without official interference or protection. [T]he court below denied meaningful public and press access to the horse roundups, while sustaining unconstitutional restrictions on such access.”

The press groups contends that the restrictions as they stand do not allow meaningful access to the roundups. Photographers simply cannot get adequate images from the locations they are relegated to. Further, the government has not presented convincing evidence that the roundups are dangerous to the point that such restrictive locations are needed.

This is especially so, the brief notes, because viewing “large, remote operations like wild horse roundups is not an option for most people, [and] the media act as public surrogates, conveying those images to a vast public audience and enabling the public to satisfy its civic duty in monitoring the government.”

“The BLM restrictions on access are very similar to those used to limit recording police activity in public places as well as being analogous to the right of access to courtroom proceedings,” said Mickey H. Osterreicher. “We also pointed out to the 9th Circuit in our argument and with an appendix of photographs, just how uniquely important and compelling visual images are to the newsgathering process,” he added. “We are hopeful that the Court will take judicial notice of that important distinction in our favor,” Osterreicher added.

Laura Leigh is represented by Gordon M. Cowan. His brief may be read here. The other news media organization that joined in the brief were: the American Society of News Editors, The Association of American Publishers, Inc., the First Amendment Coalition, Battle Born Media LLC, the Los Angeles Times, the Student Press Law Center, the National Press Club, National Public Radio, Inc., The Nevada Press Association, the Reno Gazette-Journal, The Seattle Times Co., Stephens Media LLC and the Society of Professional Journalists.

Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation. Photographers convicted under the measure could face up to year in prison. SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.

If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.” It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill. “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”

The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented. Confrontations are not uncommon. Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line. With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”

“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”

Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.

This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber. The judge said the law was unconstitutionally broad and violated the First Amendment. The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.

SB 606 passed the California State Assembly and is set to go to appropriations committee. As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.

The National Press Photographer’s Association (NPPA) today joined with the White House News Photographers Association (WHNPA) and the Reporters Committee for Freedom of the Press (RCFP) in sending a letter to Ms. Kendra Barkoff, Press Secretary for the Office of the Vice President of the United States. The letter, signed by NPPA president Mike Borland, WHNPA president Ronald Sachs, and RCFP executive director Bruce Brown, was written in response to a March 12 incident in which a journalist covering an event featuring the Vice President in Rockville, Maryland, was ordered by a Vice Presidential staff member to delete all images of the event on his camera.

As reported by the Capitol News Service, Jeremy Barr, a member of the Capitol News Service, a student-staffed news agency run by the University of Maryland’s Phillip Merrill College of Journalism, covered an event discussing domestic violence held by Vice President Joe Biden, Attorney General Eric Holder and Maryland Sen. Ben Cardin. Barr stated that he “unknowingly sat in a section of the crowd designated as a non-press area” because “I didn’t see any demarcation that would have designated a press entrance versus a general entrance.” “The event began and I took a few photos of each speaker,” said Barr, as “people a few rows in front of me were also taking photos.”

According to reports, after the event concluded Barr was approached by Vice Presidential staffer Dana Rosenzweig who asked Barr whether had taken any photos of the event. When Barr responded that he had taken photos, Rosenzweig demanded that Barr delete all images of the event from his iPhone while Rosenzweig watched, telling Barr that by sitting in the non-press area he had gained an unfair advantage over other members of the media who also attended the event. Barr complied with Rosenzweig’s request, stating that “I assumed that I had violated a protocol; I gave her the benefit of the doubt that she was following proper procedures.” Rosenzweig then ordered Barr to wait while she informed her supervisor of the incident, and after a ten minute delay Barr was permitted to leave.

Lucy Dalglish, dean of the Phillip Merrill College of Journalism, filed a formal complaint with the Vice President’s press office, stating that “this was pure intimidation,” and that “it’s clear from the circumstance that the journalist did nothing wrong.” Poynter reported that Dalglish stated in her complaint that “Rockville is not a third-world country where police-state style media censorship is expected.” Biden Press Secretary Kendra Barkoff apologized to Barr and Dalglish in separate phone conversations shortly after Dalglish’s complaint was filed. Barkoff told Dalglish that “the incident was a total miscommunication,” stressing that “it is never the press office’s policy to request that reporters delete photos.” Barkoff declined to speak about the incident on the record with the Capitol News Service, and calls to Rosenzweig were not returned.

In the letter to Barkoff the NPPA, WHNPA and RCFP state that “while we commend your office for immediately apologizing . . . we do not believe that such a blatant violation of free press/speech rights protected under the First Amendment should pass without comment.” The letter goes on to cite a May 14, 2012 letter from the Department of Justice to the Baltimore Police Department from a similar case which stated that “Under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.”

The NPPA, WHNPA and RCFP concluded the letter by commenting that “In order to ensure that situations like this one do not ever happen again . . . we would like to meet with members of your staff to discuss “event” coverage from your perspective and ours.” It is the NPPA’s hope that a meeting with the Vice President’s staff will better inform staff members as to the First Amendment rights of photographers and journalists, and will prevent future incidents such as this from occurring again.

The National Press Photographer’s Association (NPPA) is participanting in Sunshine Week, March 10-16, 2013, along with a number of other organizations, led by cosponsors – the Reporter’s Committee for Freedom of the Press (RCFP) and the American Society of News Editors (ASNE). Sunshine Week is a national initiative which was launched by the Florida Society of Newspaper Editors in 2002. “Sunshine Sunday” (as it was named) was a response to attempts by the Florida legislature to limit the state’s public records law. In 2003, ASNE expanded that initiative by hosting a Freedom of Information Summit in Washington which has now expanded to a weeklong event promoting the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.

As part of NPPA’s participation, general counsel Mickey Osterreicher will moderate a panel discussion on Friday, March 15 regarding the right to photograph and record in public. Panelists will include Washington Metropolitan Police Department Public Information Officer Gwendolyn Crump; attorney Mary Borja of Wiley Rein LLP in Washington; freelance photojournalist and independent video producer Mannie Garcia; Linda Epstein, senior photo editor for McClatchy-Tribune Information Services and attorney Robert Corn-Revere of Davis Wright Tremaine.

That panel is part of the Shoot Off Visual Media Workshop will be held in Arlington, VA. The program presents the best speakers, mentors, editors and judges throughout the country, who volunteer for this prestigious event that aligns service members with the national press corps, industry leaders and veteran military photographers. These workshops are for all levels and provide professional development in helping to fill training gaps for photographers.

As another “first” NPPA members are encouraged to participate in Sunshine Week by contributing images of “open government” to the Sunshine Week toolkit. This toolkit is a free resource available to any Sunshine Week participant including professional and student journalists working in any medium; bloggers; civic and non-profit organizations; schools; and government officials (for activities related to open government only). NPPA members are encouraged to photograph their interpretation and submit those images for use in the toolkit. These “open government” photographs can be literal or artistic, big government or small, or even not government-related at all—the concept and interpretation is left entirely to the photographer.

Images should be shot and emailed to Debra Gersh Heranadez at [email protected] by March 7, 2013. Please include “NPPA Sunshine Week Submission” in the subject line. To see materials already available in the toolkit for use by participants in their Sunshine Week Coverage, visit: http://sunshineweek.rcfp.org/toolkit/.

By submitting images to the Sunshine Week toolkit, photographers grant permission for those images to be used by Sunshine Week participants only between March 10-16, 2013. No compensation will be given for materials submitted to the toolkit. All materials submitted to the toolkit will be used with appropriate attribution. Upon conclusion of Sunshine Week most items in the toolkit will be taken down except for those granting additional permission for them to remain on the site. Those submitting images also agree that the copyright remains the property of the photographer or employer of the photographer. All participants agree that by submitting images, photographers give permission to NPPA and Sunshine Week to reproduce submissions on the NPPA website as well as in the Sunshine Week Toolkit. Reasonable precautions will be taken to ensure security against unauthorized electronic reproduction.